13

Iuris consensus

when either cicero or one of his characters looks back to a specific Greek philosopher, it is generally Plato whom they have in mind. Plato’s words are translated in Book 1 and Book 6, Plato is criticized for his imaginary state and its repellent characteristics in Book 2 and Book 4, and Plato, of course, on whose Republic De re publica is modeled. For the most part, however, Greek philosophical sources or schools, while certainly underlying parts of the dialogue, remain unnamed and are treated with the distanced disdain suitable for a Roman aristocrat: it is one thing to read a philosophical treatise, but it is quite another to admit that you have read it, and still worse to engage in detail with its arguments. The debate on justice in Book 3 is the one large exception to this rule: and although in form it is a digression modeled on Plato, and although it contains some passages that are clearly based on Plato, it is not Plato who is named as Cicero’s source; instead, the debate is presented as a re-creation of the pair of speeches delivered about the necessity of justice or injustice by the great Academic skeptic, orator, and on this occasion ambassador from Athens, Carneades, in Rome in 155 bce.¹

In order to encourage the Roman senate to reduce the crippling fine imposed on them in a land dispute with Oropus, we are told, the Athenians sent as ambassadors the heads of three philosophical schools: Diogenes of Babylon (Stoic); Critolaus (Peripatetic); and Carneades (Academic). While in Rome, Carneades gave a sample of his rhetorical and philosophical brilliance: he delivered on one day a speech demonstrating the necessity of justice and on the following day an equally convincing speech demonstrating the necessity of injustice. In De oratore (2.154–55), Catulus reports that Scipio, Laelius, and Philus had all heard and spoken with the philosophers, and a fragment of Book 2 of De re publica shows that when the question of the justice of government was raised at the very end of the book, someone explicitly brought up the name of Carneades:²

. . . for you to give an answer to Carneades, who often mocks the noblest causes through his vicious cleverness.

Philus himself, as he begins his speech against justice, is even more explicit about his source and expresses shame and indignation that he should be asked to perform the role of Carneades (3.8):

But I wish I could use someone else’s mouth as well as someone else’s arguments! As it is, Lucius Furius Philus is compelled to say things that Carneades, a Greek and one accustomed whatever seemed useful *

It has been suggested by Jonathan Powell that Cicero invented the story of Carneades’ paired speeches, but while skepticism is salutary, that solution is extreme. For while De re publica is itself, as Powell emphasizes, the ultimate source for all accounts of the event, and hence to believe the historicity of the story in Cicero’s dialogue is to a degree a petitio principii, we know that Cicero took immense care about the historical construction of his dialogues; he did not present as fact anything that he did not believe had happened, and somewhere at the end of Book 2 or in Book 3 he clearly told the story of the two speeches, the evidence for which now survives only in Quintilian and Lactantius. Whether or not Carneades actually did give the paired speeches on justice is not important in the interpretation of De re publica, but it is important that Cicero believed that he had, and he constructs his narrative on the assumption that it is based on a real event.³

On the other hand, whatever Carneades said, or whatever Cicero thought Carneades had said, must remain very uncertain for a number of reasons. In the first place, as ever, the fragmentary condition of the text of De re publica makes the content of even Cicero’s version difficult to discern: while significant portions of the palimpsest and an extended, if highly tendentious, summary exist for Philus’ speech, only a single leaf (the last) and a number of quotations from Laelius’ reply survive. Second, it is well established that Carneades himself wrote nothing: if a version of his actual speeches was known to Cicero, it was known through the reports of others, most probably in the writings of Carneades’ pupil Clitomachus.⁴ And third, it is evident—if only because both Philus and Laelius refer to events in Rome that took place well after Carneades had gone back to Athens—that neither speech is, or was intended to be, a faithful representation of what had been said a quarter century before the dramatic date of De re publica.

Cicero’s construction (or reconstruction) of the debate on justice is central to De re publica, and it is a work of remarkable complexity. To some extent, arguments about it are inevitably circular. We only know of Carneades’ antilogy through Cicero’s, and reconstruction of Cicero’s fragmentary text depends on our assessment of the relationship between Cicero’s argument and Carneades’: it is a case of ignotum per ignotius. We can, however, make a few assumptions on the basis of what is (more or less) known. In the first place, the order of Carneades’ speeches is clear: the speech showing the necessity of injustice came after the speech on justice. Cicero chose to reverse that order, in order to allow justice the last word. Equally clear is that while Carneades as a good Academic skeptic wanted his speeches to be equally convincing in order to induce the skeptically desirable state of suspension of belief, Scipio’s comments at the end of Laelius’ speech show that in Cicero’s version, justice appears to have triumphed, and Scipio’s subsequent argument that no proper state can exist without justice depends on his (and our) acceptance of Laelius’ case.⁵

There is another difference between Carneades’ speeches and Cicero’s that is less immediately apparent. The debate on justice was not new when Carneades delivered his speeches in 155; in Cicero’s version the story goes back to Plato’s Republic, and Philus’ speech includes arguments drawn from Glaucon’s speech in Republic 2. As Carneades was himself the head of the Academy and Cicero clearly based De re publica on Plato’s Republic, there is no way to tell whether these arguments were used by Carneades and were traditional in the Academy or if Cicero took them directly from Plato. What seems to be the case, however, is that both Plato’s arguments and Carneades’ were concerned with justice on two levels: the manifestation of justice and injustice in the actions of individuals, and their manifestation in the internal organization of states seen as analogical to individuals. To some degree, justice in the actions of individuals involves the relationships among individuals and groups of people, but Cicero extends the treatment of justice in interactions to the level of states: he is concerned, that is to say, not just with how one person behaves toward others or how a society apportions rights and obligations among its members, but also with how states interact with one another in terms of wars, treaties, and the treatment of subjects and allies. Both Philus and Laelius speak of Rome’s external relationships; and in fact the justice of empire was of much less relevance to the traditions of philosophy in the Athenian polis than it was in the center of Rome’s imperium.

Before discussing the arguments about Rome’s justice, however, it is worth paying some attention to the complexity of Cicero’s construction and its centrality not just to the argument about government, but also to the equally important argument about Rome’s intellectual relationship to Greece, in which the antithetical speeches of Philus and Laelius play an important part. The debate on justice contains within it representations of more than one debate. When Cicero’s characters (Philus and whoever speaks the fragment of Book 2 discussed above) talk about Carneades’ performance, they speak only of his speech against justice; the task is said to be either to repeat Carneades’ argument (Philus) or to respond to it (Book 2 fragment). Carneades did in fact, to judge from the evidence in Quintilian and Lactantius that derives from De re publica, give two speeches, and hence the debate in De re publica is double: it is a recreation of Carneades’ debate with himself, and it is a debate between Scipio and his friends on one side and Carneades on the other. In De re publica, the Romans debate justice in such a way that justice wins, thus (from at least a Roman perspective) improving on the Academy. What is more, each of the two speeches in itself can be understood as half of an implicit Academic debate in utramque partem by each of the participants: Philus the Stoic is made to argue the case against justice, while Laelius the pragmatic skeptic argues in favor of Stoic natural law. The implication is that each of them is perfectly capable of arguing both sides of the Carneadean argument. It is no accident that Cicero first talks about his protagonists’ knowledge of Greek philosophy in the preface to Book 3: men like Scipio, Laelius, and Philus are not only trained in Roman experience like the early Roman statesmen, but their study of Greek philosophy permits them to analyze and explain the traditional customs and government of Rome. As a representation of a formal Academic debate by Roman senators in a Roman context, the debate on justice displays the intellectual independence of Rome from Greece.

Up to this point in the dialogue, it is worth emphasizing, Greek philosophy has had a relatively small role. Cicero probably announced his indebtedness to Plato in the preface; we learn early on about Romans like Sulpicius Galus who had some knowledge of astronomy or mathematics. But at the outset of the long account of constitutional theory in Book 1—which certainly owes a great deal to Peripatetic theory and/or Polybius—we are told that Scipio had lectured on it to the Greeks, not the other way around; in the narrative of early Roman history any influence of Pythagoras on Numa was strongly denied; and only when the Corinthian Tarquinius Priscus reaches Rome does Scipio recognize the influence of Greek thinking on Roman political practice—and even then, it seems to consist largely of methods for paying the cavalry. As far as we can tell from what survives, the suggestion that someone should reply to Carneades at the end of Book 2 is the first time that recent Greek philosophy is seen as worthy of attention. The opening of Philus’ Carneadean attack on justice, coming right after Cicero’s claim that these men were educated in Greek philosophy, is meant to demonstrate that learning: he briskly refers to the arguments in favor of justice made by Plato and Aristotle and dismisses those of Chrysippus before refuting not only Plato and Aristotle but Epicurus as well (3.12). One might imagine that Carneades himself did something of the sort—but this is Philus speaking, not Carneades, and some of what he says is demonstrably independent of Carneades. It is an impressive demonstration that Roman philosophy has come of age.

If Roman philosophy has matured with the group of statesmen-scholars represented by Scipio, Laelius, and Philus, men capable of analyzing the merits of government as well as performing government meritoriously, it is necessarily true that they are able and willing to discuss their own situation in ethical as well as practical terms: that is, after all, what Laelius had requested of Scipio in Book 1, and it is also what Tubero asks for at the end of Book 2. And indeed—although the fragmentary state of the text makes certainty impossible—it appears that not only is there virtually no reference to recent Greek philosophy in the first two books, there is equally little reference to recent Roman history: the account of constitutions in Book 1 has nothing to say about the Roman republic, and with one important exception the account of the Roman constitution in Book 2 refers to no event later than the fourth century. Even from the point of view of the dramatic date of 129, not to mention the date of composition in the late 50s, the discussion that takes place on the first day of De re publica is strangely out of date in terms of dealing with contemporary issues.

The problem that sets the constitutional conversation going is the current crisis caused by the tribunate of Tiberius Gracchus and its aftermath; and the single event later than the aedileship of Cn. Flavius at the end of the fourth century that is mentioned in Book 2 is precisely that: Tiberius Gracchus is (fragmentarily) adduced as the sole recent example of an attempt by a demagogue to seize monarchic power (2.49). But if the conversation of the first day seems largely antiquarian in its focus, that ends with the mention of Carneades at the end of Book 2. Carneades’ speeches had been heard by Scipio and his friends; the embassy to Rome in which he participated took place in the context of Rome’s growing imperial power; and the legitimacy of that power is the central question of the debate in Book 3 as Cicero (not Carneades) frames it.

Because it is better preserved, it is easier to see the importance of Roman institutions and Roman behavior in Philus’ speech than in Laelius’.⁶ Philus’ case for the necessity of injustice falls into three parts. The first two arguments show the falsity of two conceptions of justice, namely, the idea that justice and law are identical and the definition of justice as a form of altruism, “another’s good.” Philus demonstrates that in terms of both definitions people behave unjustly: laws change and vary from place to place, and hence justice identified with law is not constant and what is “just” at one moment or one place is “unjust” at another. Behaving altruistically, moreover, is a form of folly and self-destruction that nobody, and certainly no state, follows. In the final section he refutes the consequentialist argument that people behave justly because of fear of the aftermath of behaving badly by showing that when people are not afraid of being found out or punished, they behave unjustly, using Glaucon’s argument from Republic 2 which had drawn a contrast between the wicked man who is thought good and the good man who is thought wicked: nobody in his right mind would prefer goodness over reputation, and consequences do not in fact match behavior.

It is possible that Carneades himself (as filtered through Clitomachus or another source) employed the same structure and even some of the same examples that Philus uses, but much of the speech is clearly Roman. In each of the three sections, Philus gives examples of the injustice (under the definition of justice being examined at that point) of Rome, both in its internal structure and in its relationships with other peoples. What is more, the examples are all fairly recent. In the first section (3.16–17), he uses as an example of unequal treatment under law the Romans’ not permitting the Transalpine Gauls to grow olives or vines; closer to home, he refers to the Lex Voconia of 169 bce, which set limits to inheritance by women: not only did the law concerning women’s property rights change, but the new law treated women both inconsistently and unfairly. Hence law is certainly not a priori just. In the second section, discussing the relationship between justice and self-interest or utility (after talking about vegetarianism and killing animals), he speaks of Rome’s conquests and empire as a blatant example of pursuit of one’s own interest, not someone else’s (3.24):

Our own people whose history from the beginning Africanus discussed in yesterday’s conversation, whose rule now controls the whole world—do you think it was through justice or wisdom that it grew from a tiny nation to the greatest of all?

The argument is fragmentary, but Lactantius offers a useful summary (DI 5.16.4 = 3.21b):

All successful imperial powers, including the Romans themselves who have gained possession of the entire world, if they should wish to be just—that is to say to return property that belongs to others—would have to go back to living in huts and languishing in want and wretchedness.

In the final section, however, he goes beyond these relatively broad and somewhat satirical indications of Roman injustice to something far more precise and far more pointed. After giving examples of individuals who are not deterred from wickedness by the fear of censure or punishment, he turns to the behavior of Rome itself (3.28):

What applies to individuals also applies to nations: there is no state so stupid that it would not prefer to rule unjustly than to be enslaved justly. I won’t go far for proof: when I was consul, I was in charge of the investigation of the Numantine treaty, and you were in my council. Who didn’t know that Quintus Pompeius had made a treaty, and that Mancinus was in the same situation? One of them, an extraordinarily good man, spoke in favor of the bill that I proposed on the advice of the senate, and the other defended himself as strongly as possible. If you’re looking for decency, honor, and trustworthiness, Mancinus had them; but if you want calculation, planning, and prudence, Pompeius stands out. Which *

Although the large gap in the text following this paragraph makes certainty impossible, the argument very probably comes quite close to the end of Philus’ speech: as in the other sections of his argument, he ends with a Roman reference; and as in the previous section, he extends the argument against justice from individual behavior to civic behavior.

Philus introduces the anecdote, in fact, with the explicit comment that it is about the behavior of states, but in fact it concerns both states and individuals—and indeed concerns the relationship between individual morality and civic morality. The events of which he speaks were very recent, and they involved not only Philus himself but Scipio. In 137 bce, the consul C. Hostilius Mancinus had saved his army by making a treaty with the Numantines; when he returned to Rome the senate repudiated the treaty as disgraceful. The same thing had happened to Q. Pompeius, the consul of 141, in 139, but the outcome was very different. Technically, the proper method of repudiating a treaty that was otherwise valid but undesirable was for the senate to put the responsibility for making it solely on the head of the magistrate involved and to repudiate the magistrate as well as the treaty by having the fetiales turn the magistrate over to the other party to the treaty. That happened in the case of Mancinus: Philus himself, the consul of 136, recommended that procedure after consulting with a consilium that included both Scipio and Laelius, and it was carried out—with the full support of Mancinus himself, who was, as Philus says, an honorable man. Three years earlier, however, the treaty was also repudiated, but nothing was done to Pompeius, the magistrate who had made it—and he argued in his own favor and was successful.⁷

If parts of this story seem familiar, they should: the case of Mancinus’ citizenship, which became an issue when the Numantines returned him to Rome, is the subject of a relatively long discussion by Crassus in De oratore (see above, Chapter 6). In its context in De re publica, Philus uses it to illustrate two different things. It is, in the first place, a prime example of how honorable behavior is self-defeating and dishonorable behavior is advantageous, thus continuing the example in the previous section drawn from Glaucon’s speech in the Republic: Mancinus is explicitly described as a figure of pudor and probitas, Pompeius as the reverse; and yet Mancinus went through all sorts of disgrace and difficulty, while Pompeius went unscathed. Ratio and probitas, in Philus’ argument, do not fit well together.

The behavior of individuals, however, is not the reason Philus discusses these events: it is the unpunished misbehavior of civitates that is at issue, and it is Rome he is talking about. Just what is the misbehavior he means? It would appear to be in some ways double, connected with the different treatment of the two different treaties. In the case of Mancinus’ treaty, the Romans at least behaved, according to their own lights, in the way they were supposed to: they recognized that they were abrogating a duly made treaty, but they also recognized that they owed the Numantines some (at least symbolic) compensation for so doing. In the case of Pompeius’ treaty, they did not even do that. In both cases, it was clearly a cynical move: the Romans did not behave honorably toward the Numantines, and they did not greatly care.⁸ The Numantines seem to have behaved more honorably (as well as having performed better militarily) than the Romans; their reward, when Numantia was finally besieged, defeated, and captured by Scipio Aemilianus in 133, was that the survivors were sold into slavery.

The unhappy fate of the Numantines is not mentioned in what survives of De re publica, nor is the part of the story told in De oratore: that after the Numantines returned Mancinus, he had a great deal of difficulty in regaining his citizenship. Nor does Cicero mention that there was some thought on the part of the senate of sending Tiberius Gracchus back to the Numantines along with Mancinus, because Tiberius had been Mancinus’ quaestor and had actually negotiated the treaty. As a result, it is hard to know how we are to interpret the story. Philus is telling the tale to men who already knew it and had been in the senate when the two treaties had been discussed; Scipio had not only been one of the people favoring sending Mancinus to the Numantines but was himself the general who destroyed Numantia. Are we to imagine Philus saying all this to express his disapproval of Rome’s treatment of Numantia or, as the (temporary) advocate of political realism, simply accepting it as the normal behavior of states? Are we meant to contrast only the two men, Pompeius and Mancinus, or are we to contrast a Rome powerful and cynical enough to violate both Roman law and civilized custom with a Numantia that, like Mancinus, pays a severe penalty for having trusted the Romans? Are we to imagine that Philus means Scipio to think about what he did to the Numantines, and if so, was he supposed to feel satisfaction or regret? We cannot tell whether or not Cicero intended his readers to ponder these questions—some of which may have been answered in parts of the text that are lost.

One hint about how we are to read the story of Mancinus comes from Laelius’ speech replying to Philus.⁹ It is even more fragmentary than Philus’ speech; our evidence for it consists almost entirely of quotations, and relatively few of them, while only one small part of Laelius’ speech survives in the palimpsest. That is the very end of the speech (3.41):

* . . . Asia . . . Tiberius Gracchus, who was persistent in support of the citizens, but neglected the rights and treaties of the allies and the Latins. If that license should become customary and spread more widely, and should transform our power from right to might, so that those who are now our willing subjects should be held by terror, even if those of us who are getting on in years have almost finished our watch, I’m still concerned about our descendants and about the immortality of the commonwealth, which could be eternal, if our life were conducted in accordance with ancestral institutions and customs.

Philus ends his speech on injustice by referring to the cynical treatment by Rome of treaties made with the Numantines; Laelius ends his by referring to the disregard of treaties by Tiberius Gracchus. Gracchus, as noted earlier, had been Mancinus’ quaestor; his experience in the Numantine affair is said by some sources to have been the motivation behind the radical actions of his tribunate; that tribunate had been only four years before the dramatic date of the dialogue (the same year in which Scipio destroyed Numantia), and led Scipio in Book 2 to list him as the most recent demagogue who had aimed at monarchy; and the aftermath of his tribunate and the attempt to weaken his agrarian law form the background to the dialogue itself. De oratore, as discussed previously, is framed by references to the Gracchi, and in it Scaevola—who is, it should be recalled, the only person to take part in both dialogues—presents the tribunate of Tiberius as the beginning of the end of moral politics, while De re publica is a conversation among men who deplore, and are trying to avoid, the consequences of his tribunate and murder.

In context, however, Laelius’ reference to Tiberius Gracchus signals much more than the end of moral politics. When Philus points out Roman injustice, he is speaking from the point of view of someone who believes that government is inevitably unjust; it is simply part of his role in the debate. For Laelius, however, it is something very different: for someone arguing that justice is necessary in government, the unjust actions of Tiberius challenge Rome’s claim to be a just government and hence call into question Rome’s claim to be a legitimate res publica. Laelius’ speech is far too fragmentary to reconstruct with any certainty, but his basic strategy in rebutting Philus’ apparently very effective speech is fairly clear. Philus showed not only that there is no consistent definition of justice by which people or governments abide, but that there is no practical way to make people or governments do so—at least not within the normal confines of human character and behavior. Laelius’ response is to remove the question of justice from those normal confines by placing both reward and punishment in a cosmic framework rather than a human one: he demonstrates that moral social behavior—affection and admiration for what is good or close to us above all—is in fact universal and not contingent on any particular social context; instead, he relates the universality of moral standards to the immortality of the soul and places the rewards and penalties for just or unjust behavior outside the framework of conventional human societies within which Philus’ argument is located. Fame, wealth, and power are ephemeral goals, and while virtue certainly ought to be honored, it is in fact its own reward (3.40):¹⁰

Virtue desires honor, and virtue has no other reward. But it accepts this reward easily, and doesn’t demand it harshly. But if either the ingratitude of the whole people, or the hostility of many, or powerful enemies rob virtue of its rewards, then it has many consolations to give it pleasure, and it sustains itself above all by its own dignity.

In what is undoubtedly the most famous fragment of the speech, Laelius expresses the idea of natural standards of morality in terms not of virtus, but of law (3.33):

True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its orders and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any part of it; it cannot be repealed as a whole. We can not be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius. There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of this law; and the person who does not obey it will be in exile from himself. In so far as he scorns his nature as a human being, by this very fact he will pay the greatest penalty, even if he escapes all the other things that are generally recognized as punishments.

The doctrine of natural law presented here is Stoic, but Laelius does not say so; in that respect it is similar to the treatment of verecundia and honor in Book 4.¹¹ In the context of Roman aristocratic society, of course, its origin is irrelevant, and in the rhetorical and dramatic context of the debate on justice, Laelius chooses his arguments in order to refute Philus’ arguments about the mutability of law, not out of philosophical conviction. Much more important, however, is what Laelius says about the universal applicability of this one true law and its mechanisms of enforcement.

The true law, according to Laelius, applies to omnes gentes and to all individuals, but not everyone pays attention to it: while good people always follow it, the wicked ignore it. That distinction would apply to Philus’ consequentialist analysis of law too: people who are dumb (and good) like Mancinus follow laws, while people who are smart (and wicked) like Pompeius simply ignore them. But while Philus sees people getting away with illegality, Laelius argues that nobody really does. Unlike Christians, he does not place this true judgment in an afterlife but sees it as an automatic consequence affecting the wicked during their lives: disobedient people are in exile from themselves; they lose their nature as human beings. This is closely related to a fragment cited by Lactantius that probably belongs here (DI 5.11.2 = 4.1c):¹²

There is no one who would not rather die than be transformed into the shape of an animal while still having a human mind; all the more miserable is it to have a beast’s mind in a human body. That seems to me as much worse as the mind is more noble than the body.

Laelius’ system both assumes and declares a natural order of things, violation of which, almost by definition, places the culprit lower down in that order. It is a system that not only ranks mind over body and humans over animals, but, following Aristotle, some humans over others, and on a larger scale some states over others.¹³ It is, in other words, a world of empire and hierarchy established and supervised by a god who will be described in a little more detail in the Somnium. In this world rationality, morality, and order are constituent elements of justice and there is a right way to behave and a proper system to encourage right behavior.

Given that we have only fragments of Laelius’ speech and that some of the most important fragments (the two just quoted, for instance) are preserved for us by Christian apologists who contextualize Cicero’s words to suit their own goals, it may well be that the summary above does not do justice to Laelius’ conception of justice: as expressed here, it sounds like a version of the Great Chain of Being, and Lactantius says of the fragment on natural law that it is worthy of being said by a Christian. But within the argument about justice and the nature of the res publica, the legal system and the system of punishment are much more significant than the hierarchical order itself. The legal system described by Laelius is unchanging and therefore unforgiving: it has always been there, we all know it, and in fact it is within us as a part of our rationality just as much as it has an objective existence as part of the universe itself. But what is most striking about Laelius’ description is that it is a distinctly Roman legal universe. The true law cannot be changed by either senate or people, nor does it need an exegete: Laelius’ broad language refers specifically to senatus consultum and lex, and the exegete who changes the law through interpreting it is Sextus Aelius Catus Paetus, the author of the first commentary on the Twelve Tables.¹⁴ And this kind of ad hoc ignoring or alteration of the law is exactly what had happened in the affair of Numantia. In Laelius’ universe, there are no exceptions.

As far as individuals are concerned, breaking the law means degradation from the status of human to the status of animal, even if outward appearance is unchanged. We see this in the case of tyrants: they become monsters (animal and belua, 2.48). We now see that this is the penalty for violation of the law. Quod in singulis, idem est in populis—at least that is what Philus said in introducing the case of Mancinus. The same applies in Laelius’ moral universe: the mob, according to Laelius, is immanius belua (3.45), it is a collective, tyrannous monster. But aside from losing their moral humanity, states lose something much greater: their existence. Consider again the last words of Laelius’ speech:

I’m still concerned . . . about the immortality of the commonwealth, which could be eternal (quae poterat esse perpetua), if our life were conducted (si viveretur) in accordance with ancestral institutions and customs.

Si . . . viveretur is an unreal condition: Rome (as represented by the mistreatment of subjects and allies caused by Tiberius Gracchus) no longer behaves according to ancestral custom; and we can assume that ancestral custom was in accordance with the natural law. Hence Laelius worries about the survival of Rome at all. States, as he says in another fragment of the speech which probably came shortly before the conclusion, do not have the characteristics of humans; they have no natural death and hence have the possibility of being immortal, and therefore the death of a state is, on a smaller scale, like the end of the world.¹⁵ According to the earlier discussion of constitutions, the goal of a good government is to approach immortality, and at least to last as long as possible. The actions of Tiberius Gracchus have put that at risk.¹⁶

What, then, is a res publica, to return to the fragmentary analysis of constitutions at the end of Book 3? The iuris consensus that was part of Scipio’s original definition (1.39) was not something very elaborate; it almost certainly meant, in context, no more than that a populus is constituted by agreement on a set of laws by which they agree to abide.¹⁷ But after Laelius’ argument about the one true law, iuris consensus means something much more precise and much more forbidding. If there is only one true law, agreement about it must mean acceptance of the absolute moral standard that it embodies. Just as we must abide by that law in order to remain fully human, so must a collective populus abide by it in order to remain a populus; and if there is no populus there is no res publica. I am concerned about the immortality of the res publica.

After Laelius concludes his demonstration that justice is indeed an essential element of government because the penalty for injustice marks the end of that res publica, Scipio rounds out the book (and this half of the dialogue) by first praising Laelius’ speech and comparing him to the great Athenian orators, and then turning to a reconsideration of the definition of the res publica from which the whole discussion of constitutions had begun. Six leaves of the palimpsest are unfortunately missing at this point, but Augustine’s summary of this section (CD 2.21) makes the direction of the argument clear: Scipio not only quoted both parts of his own definition of res publica from Book 1, but also reminded his hearers of what he had there said about the importance of accurate definitions in argument. Thus, when the palimpsest returns, Scipio has started a more stringent review of the various forms of government in terms of his original definition, explaining that Agrigentum under the tyranny of Phalaris was not a res publica (3.43):

So who would call that state a “concern of the people,” that is, a commonwealth, at the time when everyone was crushed by the cruelty of one man, and there was no single bond of law nor association of the group, which is what is meant by “people”?

His argument is based on his definition: there can be no res publica without a populus, and there can be no populus if there is no legitimate bond among the individuals who potentially compose it. The same is true, Scipio argues, of Syracuse under Dionysius (3.43). Improper forms of government are not true res publicae because the populus as a whole owns neither common property nor even itself: “nothing belonged to the people, and the people itself belonged to one man” (3.43).¹⁸ From tyranny, the evil twin of monarchy, Scipio moves to oligarchy (44), using the examples of Athens under the Thirty Tyrants and Rome under the Decemvirs, and then to mob rule (45), again using the example of Athens, this time the radical democracy. Through the application of a clearer and more precise interpretation of the definition of res publica, Scipio demonstrates that the list of constitutions set out in Book 1 was wrong: the three simple good constitutions remain res publicae, but the three distorted forms—tyranny, oligarchy, and mob rule—should not be considered res publicae at all: there must be a populus, as defined in 1.39, in order for there to be a res publica.

The tool that Scipio uses in refining his definition of res publica is a clearer understanding of populus; and that, in turn, is based on a reshaping of the criteria for defining what constitutes a populus. The definition in Book 1, iuris consensu et utilitatis communione sociatus, has been replaced: utility is gone, and iuris consensus has been expanded to incorporate two elements: vinculum iuris and consensus ac societas coetus. In place of simple utilitarian agreement among the parties who make up the prospective populus, Scipio imports the notion of law as something universal and constant: a legitimate society is one that is in accord with the fundamental and unchanging principles of legality, not with a particular and contingent set of statutes. The criterion for what constitutes a genuine populus has become, as Schofield has shown, legitimacy, and the language defining it is closely tied up with the language of Roman law, particularly the law of property.¹⁹

Thus, the identification of res publica as res populi, the property of the people, suggests that as the populus is in some sense the owner of the society as well as being its constituent body, it has a claim to sovereignty. The nature of this ownership becomes clear in the discussion of ochlocracy or mob rule, the debased form of democracy: Scipio’s argument requires that this not be considered a genuine res publica even though mob rule is clearly a variety of rule by the populus. The answer to this problem is that a properly constituted government (such as that of Rhodes, in which all citizens take part in government, but in different roles at different times, 3.48) has a claim to legitimacy and thus to sovereignty, but that in the extreme case, ochlocracy is not a legitimate government because it lacks consensus iuris. As Laelius puts it (3.45):

In the first place, according to your excellent definition, Scipio, there is no “people” unless it’s bound by agreement in law, and that mob is as much a tyrant as if it were one person. It’s all the more disgusting because there’s nothing more awful than the monster which pretends to the appearance and name of the people. Nor is it right—since according to law the property of madmen is under the control of their relatives, because they no longer *

Laelius’ language here looks back to Scipio’s description of the tyrant in connection with the rule of Tarquinius Superbus (2.48): there is no more hateful animal imaginable, quo neque taetrius neque foedius . . . animal ullum cogitari potest; he looks like a human, but “through the viciousness of his character he outdoes the most destructive beasts (vastissimas vincit beluas)” and desires neither iuris communio nor humanitatis societas with other humans. Immanis, taeter, belua: the tyrannical mob, like the individual tyrant, is a monster worse than the most vicious animal you can imagine, and because, like the tyrant, it shares no societas and above all no recognition of shared legal norms with any other person, its rule is no more legitimate than that of the tyrant. But of course the penalty for violating the natural law is becoming less than human.

Scipio and Laelius talk about the legitimacy of governments using the vocabulary and structure of Roman law. That it involves the law of property is very clear: not only is the notion of sovereignty conveyed through the idea of ownership entailed by res, but when Laelius makes an analogy between the mob and an insane person whose property must be looked after by his agnates, he is again viewing the commonwealth as a kind of possession of the community which must be looked after in the interests of the (communal) owner when the owner is himself incompetent. In referring to the relationship among the constituent members of a commonwealth as a societas, however, Cicero’s language goes beyond the simple notion of property. Societas was one of the four consensual contracts, an informal partnership for a specific, legitimate purpose; violating the bona fides which was an essential element in such a partnership led to infamia. Cicero knew and used this metaphor for legitimate and honorable communities and government to great effect in his first criminal speech, Pro Roscio Amerino; the idea of society as a form of contractual partnership in the discussion of constitutional forms in De re publica is an essential tool for understanding the nature of legitimate government. Not only is the common good something that belongs to the community as a whole, but the community is itself constituted by the willing and honorable participation of all its members. To violate its rules is to dissolve the community, and it is a source of infamia to do so.²⁰

The nature of the partnership that constitutes a true res publica raises another question. As far as we can follow the argument at the end of Book 3 about legitimate governments, Scipio is making a contrast between three legitimate forms (monarchy, aristocracy, democracy) and the deviations from those forms that are now seen to be not res publicae at all, because there is no legitimate construction of a populus (tyranny, oligarchy, ochlocracy). It is with this restriction of legitimacy to the three good forms of government and the rejection of the debased forms that both Augustine’s summary of Book 3 (CD 2.21) and our fragments of Book 3 come to an end. Augustine’s summary of De re publica, however, is scarcely the whole truth: his account of Book 3 ends with the lack of a populus in the debased forms of constitution; his next sentence goes on to use Sallust’s account of the debased condition of Rome in the late Republic to argue that Rome itself in that period was no res publica at all, and he then proceeds to quote from Cicero’s preface to Book 5 of De re publica to show that Cicero himself believed that there was no longer a res publica: “We preserve the commonwealth in name alone, but have long ago lost its substance” (5.1). To skip from Book 3 of De re publica to the preface of Sallust’s Histories and back to Book 5 of De re publica does not inspire confidence: Augustine is tendentious, he eliminates Book 4 of De re publica entirely, and his omissions suggest that he is trying to avoid any part of Cicero’s argument that did not sit comfortably with his own Christian attempt to reject Roman government as entirely corrupt.²¹

One thing is obviously missing from our fragments and from Augustine’s summary of Book 3: the mixed constitution itself. It seems singularly unlikely that Scipio would have gone through the simple constitutions, showing that the three good ones are genuine res publicae and the debased forms not res publicae at all, without saying a word about the kind of government that Scipio has consistently praised as best, one shaped out of the best elements of all three simple constitutions. If we accept that Scipio must have said something about the mixed constitution after talking about the three genuine simple forms, then Augustine’s summary of the book deserves slightly closer scrutiny. Civitas Dei 2.21 is, aside from the palimpsest itself, our single best source for the structure and order of Cicero’s argument in De re publica, but it is anything but objective. Augustine is attempting to reply to (possibly imaginary) interlocutors who admit (what Augustine claims already to have demonstrated) that the Roman republic was filled morum pessimorum ac flagitiosissimorum labe ac dedecore, but still cling to the idea that it was an enduring and consistent form of government, ut consistat et maneat (79.15–20). His response is to show, using a careful mixture of Cicero and Sallust, that Cicero himself thought that it was already long gone in his own time, iam tunc prorsus perisse et nullam omnino remansisse rem publicam (79.20–21).²²

To achieve that, Augustine offers a very abbreviated summary of the first half of the dialogue. He describes the dramatic setting of the dialogue in the Gracchan period; but he says nothing about the contents of the first two books except for the very end of Book 2, Scipio’s use of the analogy of musical harmony and the ensuing discussion of the necessity of justice (79.22–80.20 = 2.69c). Then comes the summary of Book 3, in which the debate between Philus and Laelius occupies some 10 lines (80.22–81.2), while Scipio’s argument about the non-legitimacy of the debased constitutions takes twice as much space (81.3–23). From this, Augustine argues that, using Scipio’s criteria, the Roman republic was not merely terrible but not even a legitimate res publica, and he uses the preface to Book 5 to prove it (81.24–82.20 = 5.1–2a), ending with Cicero’s despondent “We preserve the commonwealth in name alone, but have long ago lost its substance.” He concludes the chapter by returning to his Christian point of view and arguing triumphantly that even by Cicero’s definition of a res publica as necessarily incorporating vera iustitia, the only true res publica is the Christian one, the civitas Dei (82.21–83.15). Q. E. D.

Augustine’s technique is to use Cicero against himself; and in order to do that he necessarily omits any passage that shows Cicero’s admiration and approval of the Roman constitution. That the three simple constitutions are genuine res publicae is all very well: but Augustine omits entirely Scipio’s praise of the Roman constitution at the end of his narrative in Book 2, and if, as seems necessary, Scipio said something at the end of Book 3 about the justice embedded in the mixed constitution, the best example of which was Rome, Augustine had to omit that too. His whole purpose is, by his selection of material—all genuine, but definitely a tendentious selection—to show that in De re publica Cicero/Scipio argues that a true res publica required justice and that that is true only of the three good, simple constitutions; and then that Rome of the late republic (Scipio’s day as well as Cicero’s) had no iustitia. This leads, eventually, to Augustine’s restatement of Cicero’s definition of res publica in Christian terms; but that does not occur for another seventeen books of Civitas Dei.

My anti-Augustinian argument has one more step, that is implicitly demonstrated in Augustine’s own account. The essential injustice of Rome’s constitution, in his view, is that justice requires giving to each his due: iustitia porro ea uirtus est, quae sua cuique distribuit. Pagan Rome did not give God his due; therefore Rome was unjust; therefore it was no true res publica. By that criterion—and the definition of justice is taken from Cicero himself, even if it is no longer preserved at the end of Book 3—the simple constitutions, even the good forms, are unjust because they limit power, authority, and rights to only one element of the citizen body: that is precisely what the discussion of constitutions has made clear.²³ The extant text does not say that, but it seems an almost inescapable conclusion that, after having first shown that the debased forms of simple constitution are not res publicae at all—the section of the end of Book 3 that survives—Scipio then turned to the three basic good forms and showed that while they had some virtues, they were not completely just because of the unequal distribution of rights and responsibilities in any simple constitution. He will then have gone on to the mixed constitution and argued that it is the only completely just form of government, because it gave each constituent group of citizens what was theirs, and that this just res publica was best exemplified by the government of Rome after 449.

This reconstruction is of course already more than a little precarious, but it is worth going a bit further out on this particular limb. That Cicero/Scipio must have said something about the mixed constitution as a proper res publica is all but certain; that he connected it with the Roman constitution as established (in the account given in Book 2) with the restoration of the republican government in 449 is extremely likely. But what either Cicero or his Scipio thought about the later development of Roman government and its legitimacy is much less clear.²⁴ The ends of both Philus’ speech and Laelius’, particularly the latter, make the issue of the legitimacy of Rome as a res publica in 129 an obvious one for Scipio to consider, but we do not know from what is left of Book 3 how he answered the question. Polybius, in his account of Roman constitutional development, leaves open the possibility of decline from the ideal mixed constitution of the fifth century, but he tactfully does not clarify his meaning. Scipio may not have either, but it is hard to imagine that he did not ask the question: had the tribunate of Tiberius Gracchus and its aftermath damaged Rome’s legitimacy irrevocably, or was there reason to hope that the situation might be rectified?

1. On the status of the debate as a digression, see above, Chapter 12. Much of what is said here about the debate relies on my earlier discussions of it (Zetzel 1996 and 2017c); I have not gone into so much detail here. I note, however, that as earlier so here I am greatly indebted to the fundamental articles of Ferrary 1974 and 1977. For new information on Carneades’ life, see Fleischer 2019.

2. Nonius Marcellus 263.8, cited from Book 2 but printed as 3.9 by Ziegler. The speaker is uncertain; it cannot be Scipio addressing Philus, as Philus does not respond to Carneades, but channels him. It is much more likely that it is Philus speaking to Scipio, or Scipio speaking to Laelius, asking him to answer Carneades’ attack on justice (cf. 3.32).

3. Powell 2013. While his case for Ciceronian invention is not convincing, his article is a useful account of what is known about the philosophers’ embassy; see also Garbarino 1973: 80–86 (testimonia) and 362–70 (discussion). Cicero attached great importance to the embassy; in addition to Catulus’ comments at De orat. 2.154–55 referred to above, see also TD 4.5 and the important discussion of Ferrary 2007: 22–37.

4. Clitomachus had close Roman connections and dedicated a work to the satirist Lucilius.

5. In this I disagree with Atkins 2013: 33–42, who seems to me to draw unwarranted conclusions about the philosophical insufficiency of Laelius’ speech largely because the few extant fragments do not exhibit the philosophical rigor that would satisfy a modern philosopher.

6. For a fuller examination of Philus’ argument, see Zetzel 2017c.

7. On the details of the Mancinus affair, with full reference to the sources, see Rosenstein 1986; for Cicero’s views on Mancinus and Pompeius, see also Off. 3.109 with Dyck 1996 ad loc.

8. On this, see Zetzel 2017c: 317; here, as there, I am grateful to Benjamin Straumann for suggesting the interpretation of the end of Philus’ speech which I am adopting.

9. For the reconstruction of Laelius’ speech, I am heavily indebted to Ferrary 1974; see also Zetzel 1996: 304–8.

10. This fragment is preserved in four different parts within a single paragraph of Lactantius (DI 5.18.4–8), and while it is possible that it leaves out some words of Cicero’s, the words given are Cicero’s own, and in the right order. See Ferrary 1974: 754 n. 3.

11. See above, Chapter 12.

12. It is placed at the opening of Book 4 by Ziegler but almost certainly belongs in Laelius’ speech: cf. Heck 1966: 77–78; Ferrary 1974: 759–60.

13. For a detailed and convincing analysis of Laelius’ argument about the justice of empire, see now Schofield 2017b, citing (110–11) also the most relevant passages of Aristotle, Politics 1.5 (1254a21–32, b2–24).

14. On Sextus Aelius’ Tripertita and the role of commentary in making law, see Zetzel 2018: 25–27.

15. Augustine, CD 22.6 (3.34b). One might also suggest, although no extant fragment says so, that the other difference between individuals and states is that the former have immortal souls while the latter, while they can in theory be immortal, have no soul at all.

16. On this passage (recognizing the significance of the unreal condition), see Gaillard 1975: 503–4.

17. See above, Chapter 10.

18. On this, see particularly Schofield 1995; see also Asmis 2004: 577–82; Harries 2006: 24–25. The emphasis on common spaces in the description of the founding of a physical city (1.41) also suggests the importance of public ownership. That the discussion of the definition at the end of Book 3 changes its meaning significantly is extremely important, and will be referred to here repeatedly.

19. Schofield 1995.

20. On societas in Pro Roscio, see Zetzel 2013a: 429–34. The dissolution of societas is clearly parallel to the dissolution of states that, in Laelius’ argument, is the consequence of immoral behavior.

21. On the untrustworthiness of Augustine, see above, Chapter 9.

22. For reference, I cite in parentheses the page and line numbers of the Teubner text of De civitate dei (Dombart and Kalb 1928).

23. For the definition of justice as suum cuique, compare Philus’ use of it at 3.18, 24 and Cicero’s own at Inv. 2.160. For the fundamental unfairness of all three simple constitutions, cf. 1.43.

24. Atkins 2013: 153 assumes that Cicero/Scipio must have addressed the problem of legitimacy of governments “that do not completely meet” the standard of natural law. The ultimate illegitimacy of such governments is exactly the point, but Cicero is talking (as throughout De re publica) in terms of humanity and morality, not practical politics.